Ruling favors Alzheimer's patients

By Bill Glauber of the Journal Sentinel

Published on: 4/28/2011

In a decision that could transform the way nursing homes and law enforcement deal with vulnerable older adults who have dementia, the state Court of Appeals ruled that patients who have a diagnosis of only Alzheimer's disease cannot be involuntarily committed for treatment.

"One way to measure the greatness of our society is to look at how we treat our weakest members, such as our growing population of people afflicted with Alzheimer's," the three-judge panel of the District II Court of Appeals in Waukesha wrote.

Around 110,000 people have Alzheimer's disease in Wisconsin and advocates for older adults hailed the decision.

"It's going to have big implications," said Tom Hlavacek, executive director of the Alzheimer's Association of Southeastern Wisconsin.

The ruling came Wednesday in a case involving an 85-year-old Fond du Lac woman with Alzheimer's, identified only as Helen E.F.

In April 2010, she was detained under Wisconsin's involuntary commitment law, known as Chapter 51. It allows someone suffering from a mental illness, drug dependency or developmental disability to be detained on an emergency basis if they present a risk of harm to themselves or others.

The Court of Appeals reversed a lower-court ruling and said the patient "does not suffer from a qualifying mental condition and is not a proper subject for treatment" under Chapter 51.

The court said "even if we were to assume, which we do not, that Alzheimer's disease could reasonably be classified under Chapter 51's definition of 'mental illness,' commitment of an individual with Alzheimer's disease falls outside the scope of Chapter 51's limited definition of 'treatment.' "

The court said, "There are no techniques that can be employed to bring about rehabilitation from Alzheimer's; an individual with Alzheimer's disease cannot be rehabilitated."

Significantly, in a footnote, the court left "for another day the question" of what should be done with a person who is diagnosed with Alzheimer's and another "qualifying illness" under Chapter 51.

The use of involuntary commitment for combative Alzheimer's patients became a source of great controversy after the March 2010 death of Richard Petersen, an 85-year-old Milwaukee County resident.

Petersen, who had late-stage dementia, was placed under Chapter 51 and spent the last weeks of his life being shuttled between a senior care facility, three hospitals and the Milwaukee County Behavioral Division.

System overhaul urged

The Court of Appeals ruling quoted extensively from the task force report.

"Helen's case provides the opportunity to clarify the proper application (of Chapter 51) and eliminate the variation in ways counties apply the law to people who have Alzheimer's and related dementias," the court wrote.

Hlavacek, who spearheaded the Alzheimer's task force, said the ruling "will make it harder for nursing homes to discharge people using the Chapter 51 mechanism. It will also make it harder for police to use that avenue to detain someone with Alzheimer's who is in the community who might be exhibiting aggressive and agitating behaviors. It's going to require a lot of scrutiny of how we're handling those cases right now and going into the future."

Kristin Kerschensteiner, a managing attorney with Disability Rights Wisconsin, said the ruling could lead "to real change" in the way nursing homes and mental health facilities deal with those who have Alzheimer's disease.

"The reason we were so concerned about this issue is that we see unfortunately a lot of situations where nursing homes don't want this individual there anymore because they lash out," said Kerschensteiner, who filed an amicus brief in the case. "And the quickest, easiest way to remove that person was to use Chapter 51, whether appropriate or not. Fast and quick, call the cops, get them out. That isn't the appropriate response."

Brian Purtell, director of legal services for the Wisconsin Health Care Association, the nonprofit group that represents more than 190 nursing facilities in the state, said he thought the ruling was significant but that the practice of committing Alzheimer's patients under Chapter 51 was not widespread.

"I think the volume of use of Chapter 51 to address people with Alzheimer's is not as common as it would appear in that (task force) report," he said.

"I think the practical issue is that maybe more counties will now see this decision and say we will not be able to address a behavioral situation in an emergency situation under 51 if the individual's sole diagnosis is Alzheimer's. I think it was kind of interesting that the court left open the thorny question of what do we do with someone with a dual diagnosis."